1.1. “Commencement Date” means the earlier of the date when XpressDox is installed, copied and/or used by you for the first time;
1.2. “Documentation” means any documentation, material and other information provided to you from time to time by XpressDox in order to assist you in your use of XpressDox;
1.3. “EULA” means this End User Licence Agreement, the terms and conditions as set out herein, as read with the Schedules, and any amendments in accordance with clause 2;
1.4. “XpressDox Software” means the software, branded XpressDox Document Assembly, which is provided to you under this EULA, and any Updates thereto from time to time. XpressDox is a Document Assembly system that is equally adept at assembling individual documents, and being part of a system or workflow that enable selection of appropriate documents, and the assembly of those documents using file data or case data that covers the entire suite of documents. XpressDox is designed to automate all conditional text, variable text, and data contained within a set of documents. XpressDox allows users to minimize data entry, reduce the time spent proof-reading, and reduce the risks associated with human error.;
1.5. “Intellectual Property” shall mean all present and future intellectual property rights in and to XpressDox and the Documentation, in whole or in part, including but not limited to trademarks (whether registered, pending or unregistered in any form and/or nature whatsoever whether now used or adopted in the future), all rights of copyright whether existing now or in the future including computer programs, together with all related know-how, source codes, confidential information and all rights of a similar character whether registered or capable of registration and all applications and rights to apply for protection of same, wherever the rights arise in the world;
1.6. “Licence Key” means the Licence Key issued to you by XpressDox;
1.7. “XpressDox” means XpressDox (Proprietary) Limited (registration number 2007/024837/07);
1.8. “XpressDox employee” means any employee of XpressDox, and any person acting on behalf of XpressDox from time to time;
1.9. “On-Site Services” means any Service which is rendered by or on behalf of XpressDox at your premises or at any site requested by you, and which Service is not Remote Assistance;
1.10. “Parties” means XpressDox and you, and “Party” means either of them;
1.11. “Prices” means the prices and charges set out in the Payment Schedule and the Services Pricing Schedule from time to time;
1.12. “Purpose” means the purpose of authoring document templates and generating documents as enabled by XpressDox features from time to time;
1.13. “Remote Assistance” means any Service which is provided to you telephonically or by some other electronic means by or on behalf of XpressDox;
1.14. “Schedule” means a schedule attached to this agreement;
1.15. “Service” means any service as selected in the Services Pricing Schedule and such other services as XpressDox may, in its sole and absolute discretion, on request by you from time to time agree to provide under this EULA;
1.16. “Third Party” means any third party from whom XpressDox obtains all or part of any Third Party Material;
1.17. “Third Party Material” means any material, forms or documents of or provided by any other person and contained in or within XpressDox;
1.18. “Update” means any amendment to or deletion of all or part of XpressDox, which is provided or made available to you from time to time under clause 8;
1.19. “User” means any person who is employed by you, who is your agent and/or who acts or purports to act on your behalf and/or who uses XpressDox by using the Licence Key;
1.20. “Web Site” means www.xpressdox.com or such other web site as may be specified by XpressDox from time to time; and
1.21. “you” means the natural or juristic person whose details are provided to XpressDox when obtaining XpressDox, and “your” has a corresponding meaning.
2. Amendments to this EULA
2.1. Subject to the provisions of this clause 2, no amendment may be made to this EULA without the agreement in writing of both Parties.
2.2. The Parties agree that all or any provision of this EULA (save for the provisions of clause 13), including the Prices, may be amended by XpressDox from time to time in its sole and absolute discretion, by XpressDox:
i. giving you written notice to your email, fax, address or other details provided when you obtained XpressDox;
ii. amending the terms of the EULA as published on the Web Site and/or in XpressDox, and posting on the Web Site notification that the EULA has been amended and/or a hyperlink to the terms of such amended EULA; and/or
iii. amending in any Update the terms of the EULA and posting in the Update notification that the EULA has been amended and/or a hyperlink to the terms of such amended EULA.
2.3. XpressDox shall, where it is practical to do so, use its reasonable endeavours to notify you in advance of any amendment to the Prices.
2.4. You are responsible for checking the terms and conditions of the EULA, including the Prices, for any amendments as posted on the Web Site and/or XpressDox and/or any Update from time to time before each use of XpressDox by any of your Users and before any Update is installed. Continued use of XpressDox by you or on your behalf after any amendment has been effected as contemplated in clause 2.2 constitutes your deemed acceptance of the EULA as so amended. A certificate signed by one of XpressDox’s directors, whose appointment, qualification and authority need not be proved, shall be prima facie proof of the date of publication and content of the provisions of the EULA from time to time.
3. Grant of rights
3.1. Provided that you pay all amounts timeously as contemplated in this EULA and provided that XpressDox has issued to you a Licence Key and you have registered your use of XpressDox as contemplated in clause 7 and XpressDox has not under this EULA suspended or terminated your right to use XpressDox, XpressDox agrees to provide you with the Services and XpressDox hereby grants to you the following right for the term of this EULA, which you hereby accept subject to the terms and conditions set out in this EULA: a non-transferable and non-exclusive licence to use XpressDox for the Purpose and subject to the limits on the number of Users as set out in the Payment Schedule.
3.2. You shall be entitled to obtain XpressDox in the machine-readable form of object code only. You shall not have or be entitled to obtain XpressDox in source code.
4. Acceptable use
4.1. In respect of your use of XpressDox and Documentation, you agree to abide by XpressDox’s operating policies as may be published on the Web Site from time to time, and as may be amended from time to time at XpressDox’s sole discretion, and to abide by all applicable laws and regulation, and you will not send any communication that could subject XpressDox to potential civil or criminal liability.
4.2. Without prejudice to the provisions of clause 3, you shall not, and shall procure that none of your Users shall:
i. use XpressDox for any purpose other than the Purpose;
ii. copy (other than in terms of this EULA), adapt, translate or reproduce XpressDox and/or Documentation, in whole or in part;
iii. permit, whether directly or indirectly, any third party including any subsidiary, associate, director, shareholder, agent, User, representative and/or employee, to do anything which you are prohibited from doing as contemplated in this clause;
iv. rent, lease, sell, sub-license, assign or otherwise transfer or make available XpressDox or Documentation, in whole or in part, to any person or purport to do any of the aforegoing; nor
v. modify, decompile, reverse compile, disassemble, reverse assemble or reverse engineer (or, attempt to do any of the aforegoing) all or part of XpressDox, Documentation and/or any database which forms part of XpressDox, or otherwise do or attempt to derive or print any source code of XpressDox or reduce all or part of XpressDox to a human readable form.
4.3. You shall, at your own cost:
i. ensure that all your Users will comply with the provisions of this EULA;
ii. maintain accurate and up to date records of the number and siting of all copies of XpressDox and shall provide reasonable access to such records to XpressDox upon XpressDox’s request; and
iii. maintain control and possession of all equipment on which XpressDox is installed, and, if you transfer ownership and/or possession of any such equipment to any person, you shall ensure that all XpressDox is permanently deleted from such equipment.
5. Minimum Specifications
5.1. You will procure that XpressDox is only used under this EULA on or in relation to hardware and software which complies with the minimum specifications of Microsoft® Office Word 2010, 2007, or 2003, as published from time to time on http://www.office.microsoft.com. You acknowledge that failure to abide by these specifications could lead to adverse consequences, including but not limited to: malfunction of XpressDox, the hardware used by you and/or any other software that is used on your computer and/or network.
6. Security and Licence Key
6.1. You hereby agree and warrant, and shall procure that each User complies with the following:
i. the Licence Key shall only be used by your Users on your behalf under this EULA;
ii. neither you nor any User shall give, disclose or make available the Licence Key to any other person for such person’s use (“unauthorised use”) and that you and each User shall maintain the confidentiality of any Licence Key; and
iii. if for any reason any Licence Key is no longer secure or may be accessible to or in the possession of any person other than a User authorised by XpressDox, you shall immediately notify XpressDox thereof, whereupon XpressDox shall use its best endeavours to replace such Licence Key within twenty four (24) hours after receipt of such notification.
6.2. In order to ensure the security and reliable operation of the Web Site and XpressDox for all end users of XpressDox, XpressDox hereby reserves the right to take whatever action XpressDox considers necessary to preserve the security and reliability of the Web Site and/or XpressDox from time to time.
6.3. You agree that there are technological measures and software contained in XpressDox designed to monitor your compliance with the terms of this EULA, including but not limited to monitoring your use of XpressDox and preventing XpressDox from being used save as permitted under this EULA. To the extent necessary, you hereby agree and authorise XpressDox to use and install such technological measures and software onto your computers and/or computer network upon installation of XpressDox as contemplated in this EULA.
6.4. You agree that it is your responsibility to back up your data regularly.
7. Mandatory registration of XpressDox Software
7.1. You are required to register your use of the XpressDox Software in accordance with XpressDox, and may be required to re-register the XpressDox Software periodically after any Updates, reinstallation of XpressDox Software and/or any hardware changes, failing which XpressDox, without prejudice to its rights, shall be entitled to suspend your right to use XpressDox pending such registration.
8. Updates to XpressDox
8.1. XpressDox shall be entitled, in its sole and absolute discretion, to develop and issue Updates from time to time.
8.2. XpressDox shall notify you of any Updates by written notice sent to your e-mail, fax and/or physical address provided when you obtained the XpressDox and shall make such Updates and such instructions, if any, as may be provided by XpressDox in relation to the installation of such Updates (“Update Instructions”), available to you by download from the Web Site and/or, if reasonably practical and upon your written request, by other means such as on a compact disk or DVD sent by courier or post.
9. On-Site Services and Remote Assistance
9.1. You acknowledge and agree that the Services may be provided by Remote Assistance from time to time, which may include the use of a computer program to allow an XpressDox employee to be able to view and interact with the computer(s) being utilised by you and/or any of your Users. An XpressDox employee will only be able to provide this type of Remote Assistance on the instruction of one of your Users who will be able to view the changes made by such XpressDox employee on the computer of the User in question while the changes are being made. Each such instance or session of Remote Assistance using a computer program must be initiated by the User in question downloading a Remote Assistance program to such User’s computer from a designated web site and cannot be initiated by XpressDox without such download. You warrant that, save where otherwise expressly agreed with XpressDox in writing, each of your Users has the authority to provide such instruction and effect such download, as contemplated in this clause.
9.2. Once a Remote Assistance session has been concluded the Remote Assistance computer program will automatically uninstall and will be completely deleted from the User’s computer and a new session of Remote Assistance can only be initiated by such User by downloading a new Remote Assistance computer program in the same manner as described before.
10.1. In consideration of the rights derived by you under this EULA in respect of any month, you shall pay to XpressDox on demand, all fees, charges and amounts as specified in the Payment Schedule and Services Pricing Schedule.
10.2. All amounts due to XpressDox under this EULA from time to time shall be exclusive of value-added tax, which shall be charged and recovered in addition to such amounts.
10.3. Failure to make timeous and proper payment of any amount payable under this EULA shall, without prejudice to XpressDox’s rights, entitle XpressDox to suspend your right to use XpressDox pending such payment.
10.4. You will make payment to XpressDox of all amounts payable in terms of this EULA free of exchange and without deduction or set-off of any nature and prior to making any claim against XpressDox in terms of this EULA. You will in no circumstances be entitled to defer or withhold payment of any amounts due in terms of this EULA for any reason whatsoever.
11. Reservation of rights not expressly granted
11.1. XpressDox is only licensed in terms of this EULA, and is not sold.
11.2. You may not, without XpressDox’s prior written consent, use any Intellectual Property, save as may be expressly provided in this EULA.
11.3. XpressDox reserves all rights, including but not limited to Intellectual Property rights, not expressly granted herein.
12. Use of Data/Privacy
13. Commencement, termination, breach and suspension
13.1. This EULA will commence on the Commencement Date and shall remain in force subject to termination in accordance with this EULA, provided that either Party may terminate this EULA on the giving of at least 30 (thirty) calendar days’ prior written notice thereof to the other Party.
13.2. In the event that you are not satisfied with XpressDox, you shall be entitled, on the giving of at least 30 (thirty) days’ prior written notice thereof to XpressDox, to terminate this EULA within 90 (ninety) calendar days of the Commencement Date, in which event XpressDox shall refund to you all payments made by you under this EULA prior to the date of such termination.
13.3. Should you fail to make timeous payment of any amount contemplated in this agreement and/or to observe and perform any of the terms, conditions or obligations in this EULA, then XpressDox shall be entitled, but not obliged, in its sole discretion and without prejudice to any of its rights that it may have in law, including the right to claim damages, without notice, to terminate this EULA and recover all its costs related to such termination.
13.4. The expiry or termination of this EULA shall be without prejudice to any rights that XpressDox may have accrued as at the date of such expiry or termination.
13.5. Upon termination of this EULA:
i. all rights granted to you under this EULA will cease and you shall immediately cease all use of and access to XpressDox, Documentation, and Intellectual Property;
ii. you hereby authorise XpressDox to attend at any premises on which any copies of XpressDox is held, in order to remove and/or uninstall XpressDox from your computers any other hardware on which such XpressDox is held; and
iii. reimburse to XpressDox all its costs of such termination and costs on an attorney and own client scale.
13.6. In the event that XpressDox, under this EULA, suspends your right to use XpressDox for any period, then you will not be able to use the XpressDox Software during the period of such suspension, and any such suspension will not affect your obligation to pay the amounts due under this EULA.
13.7. The provisions of this clause 13 shall survive termination of this EULA.
14. Intellectual property
14.1. You acknowledge and agree that:
i. save for the limited rights to use XpressDox as set out in this EULA, you have no rights to and/or title in, to or in respect of the Intellectual Property and/or XpressDox, and no Intellectual Property is granted or assigned under this EULA; and
ii. you shall not at any time, during or after termination of this EULA, question and/or dispute the ownership of, infringe or prejudice any rights in and to, or take any action to impute that you are the owner of or have any interest in, XpressDox and/or Intellectual Property.
14.2. If during the term of this EULA you become aware of any infringement or use (save as authorised under this EULA) of the Intellectual Property by any person, then and in such event you shall notify XpressDox immediately in writing and you shall co-operate fully with XpressDox in whatever measures, including legal action, are taken to bring any such infringement or use to an end.
15.1. While every effort is made to eliminate any errors, you acknowledge and agree that no software is error-free and so XpressDox is provided “as is”. Furthermore, to the maximum extent permitted in law, save as may be expressly set out in this EULA:
i. XpressDox makes no warranties, either express or implied, in respect of XpressDox, any Service, any Communications Service and any Third Party Material; and
ii. XpressDox expressly disclaims any warranty as to the performance of XpressDox, any Service, any Communications Service and any Third Party Material and also expressly disclaims all other warranties, including (without limitation) implied warranties of merchantability and fitness for a particular purpose.
15.2. You warrant that the information set out in clause 23 is true and correct as at the Commencement Date, and that you shall notify XpressDox in writing of any changes to such information from time to time.
15.3. You warrant and undertake that you shall at all times comply with all applicable legal or regulatory requirements and constraints in regard to your access to and/or use of XpressDox and the Communications Services and your receipt of any Service.
16. Disclaimer and exclusion and limitation of liability
16.1. You agree and acknowledge that all Third Party Material is obtained from a Third Party and that XpressDox has no liability or responsibility for any such Third Party Material. You accordingly hereby agree to check and verify such Third Party Material with the Third Party from which XpressDox obtained such Third Party Material.
16.2. XpressDox shall not be liable to you or any other person whatsoever in respect of (and you or any such person shall have no claim against XpressDox and/or any person acting on behalf of XpressDox and you hereby indemnify and hold XpressDox and any such person acting on behalf of XpressDox free from liability in respect of) any loss, liability, damage or expense (even if XpressDox had been advised of or should otherwise be aware of the possibility thereof):
i. caused by any of the following:
* any use of XpressDox or of any Intellectual Property in any manner save as expressly allowed under this EULA;
* any reliance by you or any other person on any Third Party Material or any other information stored or generated by means of XpressDox;
* any failure by you or any of your Users to comply with the provisions of this EULA;
* any interruption in or unavailability of the Internet, the Web Site and/or any network or any service provided by any communications service provider, attributable to any cause whatsoever;
* any cause external to XpressDox, including but not limited to any failure in any hardware on which XpressDox is operational, any force majeure and/or any circumstance which is beyond the control of XpressDox;
ii. incurred as a result of or in any way related to the acts or omissions of any XpressDox employee in relation to, without limitation, any Service, including but not limited to Remote Assistance and On- Site Services;
iii. arising from any failure by any person to reactivate or enable any firewall or security mechanism after the provision of any services under this EULA, including but not limited to any On-Site Services and/or any Remote Assistance;
iv. which is loss of income, loss of goodwill or profits, business interruption, procurement of substitute computer equipment, loss or corruption of data or business information or other pecuniary loss arising out of delay of delivery, reliance in the use or inability to use XpressDox; or
v. which is consequential or incidental loss or damage or any loss or damage other than direct damages, it being agreed that in no event shall XpressDox be liable to you or any other person for any consequential, incidental, indirect, special or other damages whatsoever, regardless of whether such loss, damage, liability or expense arises from breach of any provision of this EULA, delict or otherwise.
16.3. Without in any way limiting the provisions of clause above, the aggregate maximum liability of XpressDox under or arising from this EULA to you and to any person whatsoever from any causes of action whatsoever (regardless of whether such liability arises from breach or termination of this EULA or delict, including from gross negligence, or otherwise, and including any claim or liability for damages) which causes of action arise during:
i. the period of 12 (twelve) months commencing on the Commencement Date, shall be limited to an aggregate amount equal to the aggregate of all amounts paid under this EULA in respect of such period; and
ii. in any subsequent successive period of 12 (twelve) months commencing on any anniversary of the Commencement Date, shall be limited to an aggregate amount equal to the aggregate of all amounts paid under this EULA in respect of the previous period of 12 (twelve) months.
16.4. This clause 16 shall survive termination of this EULA.
17. Cession and assignment
17.1. You shall not be entitled to cede, assign or transfer any of your rights, nor assign, delegate or otherwise transfer any of your obligations, under this EULA, without XpressDox’s prior written consent.
18. Entire agreement and no representations
18.1. This EULA comprises of the entire agreement between the Parties in relation to its subject matter and it supersedes any written or oral representations, be they express or implied, and any prior agreements between you and XpressDox concerning XpressDox.
18.2. Subject to clause 15.1, no Party shall be bound by any express or implied term, representation, warranty, promise or the like not expressly recorded in this EULA.
19. Force majeure
19.1. XpressDox shall not be liable for any default or delay in the performance of its obligations under this EULA if such default or delay is due to circumstances beyond the reasonable control of XpressDox, which shall include but shall not be limited to any Act of God, extreme weather or natural disaster, war, terrorism, riot, civil commotion, malicious damage, legislation, strikes or disruption to the internet (“force majeure”).
19.2. If any default or delay in performance is caused or anticipated due to force majeure, the performance of the obligations of XpressDox will be suspended during the period of force majeure.
20. South African law
20.1. This EULA shall be governed by and interpreted according to the laws of the Republic of South Africa and, in the event of any conflict between or inconsistency in the laws applicable in the various provinces of the Republic of South Africa, the law as applied and interpreted in the Province of the Western Cape will prevail.
21. Failure to enforce rights
21.1. Failure by XpressDox to enforce a right as provided in this EULA will not constitute a waiver by XpressDox in respect of that right.
22. Electronic billing
22.1. By inserting an email address into the Electronic Billing Email field under contact information provided when you obtained XpressDox, you indicate that you wish to receive invoices and notices under this EULA electronically by email to such email address.
23. Contact Information (domicilium citandi et executandi)
23.1. Each of the Parties chooses domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purposes arising from this EULA as follows:
XpressDox (Proprietary) Limited
Registration Number: 2007/024837/07
Directors: C Pearson, PR Tuffin, JF Venter, DAC Vickers
Unit 1, 93 North Street, Ferndale, Randburg, Gauteng, South Africa
Telephone: +27(0)11 793 7886
Fax: +27(0)866 747 100
Web site: www.xpressdox.com